Rabindranath Samanta, J
1. This writ petition has been filed by the petitioners the State of West Bengal through the Chief Secretary and the Principal Secretary, Finance
Department, Government of West Bengal, challenging the judgment and order dated 26.07.2019 passed by the West Bengal Administrative Tribunal
(hereinafter referred to as the Tribunal) in O.A. No. 1154 of 2016.
2. Disgruntled at the inaction and discriminatory action on the part of the State towards grant of Dearness Allowance to its employees in terms of the
West Bengal Services (Revision of Pay and Allowance) Rules, 2009 (in short ROPA Rules, 2009) the respondents Confederation of State
Government Employees, West Bengal, Unity Forum, an organisation of the salaried employees of the State Government and two others namely
Indranil Mitra and Gopal Majumder of the unions brought the aforesaid original application seeking the following reliefs:-
“ a. A direction upon the respondents authorities to forthwith release the 50 % dearness allowance which is due upto January, 2006
immediately within a period of 1 (one) month from the date of receiving of the order;
b. A direction upon the respondent authorities to immediately comply with the report and the recommendations of the 5th Pay Commission
Report positively and without fail within a period of 1(one) month from the communication of the order;
c. A direction upon the respondent authorities to release the 50% of Dearness Allowances as the State Government without releasing the 50%
Dearness Allowances for mere eye-wash set up a 6th Pay Commission who recommended for 10% interim relief upon the basic pay. But, no
whisper about due 50% Dearness Allowances and unless the Court intervenes into it there may be every possibility of forfeiture of that 50%
due Dearness Allowances which is the penultimate goal and gain of the State Government and the applicants will suffer irreparable loss and
injury;
d. The applicants pray for relief order directing the respondent authorities to grant 50% of the Dearness Allowances as that of the Central
Government with arrear upto January, 2016 within a period of two weeks from the date of order;
e. Costs pertaining to this application and incidental thereto;
f. Such other further order or orders as Your Lordships may deem fit and proper.â€
3. By the order dated 16.02.2017 the Learned Tribunal dismissed the application recording the following observations:-
“ i. Payment of Dearness Allowance to the employees of the Government of West Bengal was absolute prerogative falling within the
discretionary domain of the Employer (read the State government) and inaction and/or refusal on the part of former cannot result in denial
of an accrued right of the Employee for getting Dearness Allowance;
ii. Though part of the recommendation of 5th Pay Commission might have been acted upon, it did not entail that as a necessary corollary the
same had to be carried out to its logical conclusion;
iii. The issue of discrimination in the matter of payment of Dearness Allowance to the Employees of the State of West Bengal with their
counterparts serving in Banga Bhawan at New Delhi and in Youth Hostel at Chennai including the Employees of West Bengal State
Electricity Development Corporation, could not be grappled and no analogy on the basis of the same could be derived in this context.â€
4. Feeling aggrieved by the order of dismissal of the application the respondent Nos. 1 to 4 preferred a writ petition being WPST No. 45 of 2017
before this Court and a Co-ordinate Division Bench by the judgment dated 31.08.2018 set aside the order of the Tribunal and remanded the matter
back to the Tribunal for fresh adjudication on some issues framed by the Division Bench.
5. To discern the observations made by the learned co-ordinate Division Bench and the issues framed by it for adjudication it will be apposite to
excerpt the relevant observations which are as under:-
“ 82. In view of the discussions and observations made hereinabove, I sum up as follows:-
i) The claim of the employees serving under the Government of West Bengal for Dearness Allowance is based on legally enforceable right
on the all employees serving under the Government of West Bengal up to such extent of the recommendations of the 5th Pay Commission
which has been accepted by the Government of West Bengal by virtue of the provisions of sub-rule(1) Rule 12 of ROPA Rules, 2009 read
with paragraph 10 of the clarificatory memorandum bearing no. 1691-F dated February 23, 2009 on ROPA Rules, 2009 issued by the
Government of West Bengal, Finance Department, Audit Branch, and paragraph 3 of memorandum bearing No. 1692-F dated February
23, 2009 in the matter of drawl of Dearness Allowance in revised pay structure under the ROPA Rules, 2009 issued by the Government of
West Bengal, Finance Department, Audit Branch.
ii) The claim of the employees serving under the Government of West Bengal to get Dearness Allowance at a rate equivalent to that of the
employees of the Central Government requires adjudication upon consideration of the relevant materials on record for the purpose indicated
hereinabove.
iii) The claim of the employees serving under the Government of West Bengal for Dearness Allowance at a rate equivalent to that of the
employees discharging their functions in Banga Bhawan at New Delhi and in Youth Hostel at Chennai requires consideration of the
materials which may be brought on record by the Government of West Bengal for adjudication of the issue of arbitrariness in payment of
Dearness Allowance at differential rates.
83. The aforesaid second and third issues, namely, (i) Whether the claim of the employees serving under the Government of West Bengal for
Dearness Allowance at a rate equivalent to that of the employees of the Central Government, and (ii) Whether the discrimination in the
matter of payment of Dearness Allowance to the Employees of the State of West Bengal with their counterparts serving in Banga Bhawan at
New Delhi and in Youth Hostel at Chennai, which require adjudication after bringing relevant materials on record, cannot be done in this
writ application acting as a Court of first instance in view of the principles of law settled in the matter of L.Chandra Kumar Vs. Union of
India, reported in AIR 1997 SC 1225. The Learned Tribunal is the appropriate forum to discharge the above function as a Court of first
instance.
84. As a consequence the order impugned to this writ application stands quashed and set aside remanding the matter back to the learned
Tribunal for adjudication of the aforesaid two issues, namely (i) Whether the claim of the employees serving under the Government of West
Bengal for Dearness Allowance at a rate equivalent to that of the employees of the Central Government, and (ii) Whether the discrimination
in the matter of payment of Dearness Allowance to the Employees of the State of West Bengal with their counterparts serving in Banga
Bhawan at New Delhi and Youth Hostel in Chennai, on its merit without being influenced by its earlier observations made in the order
impugned to this writ application.â€
6. Dissatisfied with the judgment and order dated 31.08.2018 passed by the Co-ordinate Division Bench the petitioners herein filed review application
being R.V.W.No. 159 of 2018 seeking review of the judgment. It appears that by a judgment dated 07.03.2019 the review application preferred by the
petitioners was dismissed. However, on the prayer of the learned Advocate General, the Co-ordinate Division Bench allowed the petitioners time to
file the affidavit-in-opposition before the Tribunal by a period of three weeks from date, reply if any, one week thereafter. By the order the Tribunal
was requested to expeditiously hear and decide the matter preferably within a period of two months from date.
7. In compliance with the directions made by a Co-ordinate Bench in WPST No. 45 of 2017 and RVW No. 159 of 2018, the learned Tribunal heard
the original application No. 1154 of 2016 and on consideration of the materials placed before it disposed of the application vide the judgment and order
dated 26.07.2019. In the judgment the following directions were made by the learned Tribunal :-
“ The respondent No. 1, Chief Secretary to the Government of West Bengal is directed to evolve norms/principles within a period of three
months from the date of this order for release of DA on the basic pay of the State Government employees fixed in terms of ROPA Rules,
2009 by taking into consideration inflation on the basis of AICPI number (1982=100), so that DA can be paid to the State Government
employees at least twice in a year till the date of giving effect to the recommendation of 6th Pay Commission set up by the Government of
West Bengal for its employees. The respondent no. 1 is directed to implement the norms/principles evolved as per direction of the Tribunal
within a period of six months from the date of the order. The respondent No. 1 is further directed to make payment of arrears of DA on the
basic pay to the State Government employees by taking into account level of inflation on the basis of AICPI number (1982=100) by following
the norms/principles evolved as per direction of the Tribunal within a period of one year from the date of this order or before giving effect to
the recommendation of 6th Pay Commission set up by the Government of West Bengal, whichever is earlier. The respondent No.1 is at
liberty to decide the mode and manner of payment of arrears of DA to the State Government employees within the period of time fixed by us.
The respondent No. 1 is also directed not to give any effect to the office orders/memorandums issued for payment of DA to the State
Government employees posted in New Delhi and Chennai at a rate payable to the employees of the Central Government, but the respondent
No.1 will not make any recovery for excess payment of salary to those State Government employees. The respondent No.1 is at liberty to give
incentive to the State Government employees working in New Delhi and Chennai by payment of special allowance or any other allowances
as the State Government may deem fit and proper. With the above directions, the original application stands disposed of.â€
8. What we find from the judgment dated 31.08.2018 passed by Co-ordinate Bench in WPST No. 45 of 2017 and having withstood the test in the
review application being RVW, it has been held by the Co-ordinate Bench in unambiguous term that the claim of the employees serving under the
Government of West Bengal for Dearness Allowance is based on legally enforceable right on all the employees serving under the Government of
West Bengal up to such extent of the recommendation of the 5th Pay Commission which has been accepted by the Government of West Bengal by
virtue of provisions of sub-rule (1) Rule 12 of ROPA Rules, 2009 read with paragraph 10 of the clarificatory memorandum being No. 1691-F dated
February 23, 2009 on ROPA Rules, 2009 issued by the Government of West Bengal, Finance Department, Audit Branch, and paragraph 3 of
memorandum bearing No. 1692-F dated February 23, 2009 in the matter of drawl of Dearness Allowance in a revised pay structure under the ROPA
Rules, 2009 issued by the Government of West Bengal, Finance Department, Audit Branch. As against such finding/direction of the Co-ordinate
Bench, no appeal has been preferred by the petitioners before any higher forum. Therefore, this finding/direction of the Division Bench has attained
finality.
9. Now, the seminal question involved in the instant matter is whether the judgment and the order passed by the learned Tribunal to adjudicate the
aforesaid two issues in favour of the employees is sustainable ?
10. Before we consider the question as posed, the background facts, shorn of details, may be delineated as under :-
The State of West Bengal set up 5th Pay Commission in the year 2008 to examine the structure of emoluments of all employees under the control of
the Government of West Bengal and to make recommendation on certain issues including principles for grant of Dearness Allowance with reference
to the cost of living index. The 5th Pay Commission made various recommendations including revision of pay and allowances including Dearness
Allowances to be paid to the employees of different departments of the Government and submitted its report to the State Government. The State
Government accepted the recommendation of the Pay Commission by making Rules viz., ROPA Rules, 2009. These Rules provide for giving
allowances viz., Dearness Allowances, medical allowance, house rent allowance and non-practising allowances. The grievances of the respondent
Nos. 1 to 4 who were the applicants of the original application are against the non-grant of Dearness Allowance to the employees in terms of the
recommendation of the Pay Commission as recommended in Chapter- X of the report. Owing to unabated pressure of inflation, the real value of
salary fixed periodically by the Pay Commission gets continuously eroded with the passage of time. The cost of price living index is the basic factor
for consideration of the Pay Commission for determination of Pay and Dearness Allowances to be paid to the employees. The State Government
followed the same principles for computation and payment of D.A on basic pay fixed under 5th Pay Commission as has been done by the Central
Government under 6th Central Pay Commission. The Central Government has revised D.A twice in a year on 1st January and 1st July and paid them
within third month on which the DA is payable, whereas the State Government initially paid D.A twice in a year but discontinued to pay twice in a
year after the year 2010 and has delayed payments of D.A to its employees in most arbitrary manner. Compared to the D.A.s paid to the Central
Government Employees, the State Government Employees are lagging far behind. By setting out comparative chart of D.A paid to the Central
Government Employees and D.A paid to the State Government Employees the applicants/ respondent Nos. 1 to 4 have depicted the difference of D.A
in the Tribunal application.
11. The State Government Employees who are serving at Banga Bhawan at New Delhi and Youth Hostel in Chennai are getting D.A at the same
rate as admissible to Central Government Employees. Besides, the employees of West Bengal State Electricity Development Corporation are also
getting D.A at the same rate as that of Central Government Employees. This action on the part of the Government of West Bengal is grossly
discriminatory.
12. Under the aforesaid facts as briefly stated, the respondent nos. 1 to 4/ the applicants sought for the reliefs as quoted above.
13. Appearing for the petitioners Mr. S.N. Mookherjee, learned Advocate General by citing a decision in the case of India General Navigation &
Railway Company Limited, Calcutta and Another-Vs- Workmen and Another reported in AIR 1960 SC 1286 submits that the principle as to payment
of Dearness Allowance depends upon the place of posting of an employee where his family members (i.e., wife and children) reside. Placing reliance
upon a decision in the case of Workmen Employed by Mesrs Indian Oxygen Limited â€"Vs- Mesrs Indian Oxygen Limited reported in (1985) 3 SCC
177 learned Advocate General emphasises that Dearness Allowance for workmen of various units of an All-India concern should vary according to
All-India Consumer Price Index for those respective units and cannot be based on All India Average Consumer Price Index with uniformity. Learned
Advocate General points out that Industry-cum-Region Principle is applicable for adjudication of payment of disbursement of Dearness Allowance.
Learned Advocate General emphatically submits that payment of Dearness Allowance is deeply interlinked to the financial ability of the employer and
if the resources of the employer do not permit the employer to pay Dearness Allowance to neutralise the high cost of living of an employee the
employer is within its lawful domain to decline payment or disbursement of Dearness Allowance. In support of his submission learned Advocate
General has cited a decision in the case of Tamil Nadu Electricity Board represented by its Chairman â€"Vs- Tneb - Thozhilalar Aykkiya Sangam by
its General Secretary reported in (2019) 15 SCC 235. To sum up his submission learned Advocate General argues that payment of Dearness
Allowance to the employees of the Government is within the discriminatory domain of the Government dependent on the factors like its financial
resources, place of posting of an employee etc. and inability on the part of the Government to pay or disburse Dearness Allowance cannot be termed
as denial of the accrued right of an employee.
14. Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel appearing for the respondent Nos. 1 to 4 submits that most of the State Governments
have adopted the method of payment of Dearness Allowance to its employees at the same rate as admissible to the Central Government employees
which is assessed as per the All India Average Consumer Price Index prepared by Labour Bureau, Shimla. Mr. Bhattacharya submits that the
methodology or principle behind payment of Dearness Allowance is to mitigate the loss of value of basic salary of an employee on inflation in the
market economy. Mr. Bhattacharya by referring to an unreported judgment of a Co-ordinate Division Bench of this High Court rendered in MAT 501
of 2020 with MAT 502 of 2020 (West Bengal State Electricity Transmission Company Limited and Others -Vs- West Bengal State Electricity Board
Engineers Association and Others) submits that the West Bengal State Electricity Transmission Company Limited, a State Government undertaking,
has been directed to pay the Dearness Allowance to its employees at the same rate as admissible to Central Government Employees. Mr.
Bhattacharya argues that the submission of the State that due to financial inability it is not in a position to pay Dearness Allowance to its employees is
not acceptable as this Government disburses Dearness Allowances at the rate of Central Government to the members of All India Administrative
Service and All India Police Service who are serving under the direct control of the State Government. Mr. Bhattacharya further submits that those
employees who are employed at Delhi and Chennai, but governed under the statutory Rules of the State Government are getting Dearness
Allowances at the rate as that of the Central Government and this action on the part of the Government offends the golden Rule of equality enshrined
in Article 14 of the Constitution. Lastly Mr. Bhattacharya by drawing our attention to the definition of “existing emoluments†under Rule 3 of the
West Bengal ROPA Rules, 2009 emphasises that after the advent of ROPA Rules, 2009 the claim of Dearness Allowance of an employee has
fructified as the statutory right and it is enforceable by the writ Court or Administrative Tribunal. To counter the submission of the learned Advocate
General Mr. Bhattacharya submits that the decisions cited by learned Advocate General relate to workmen governed under the Labour Laws,
especially the Industrial Disputes Act and the conditions of service of them are contractual whereas the service conditions of Government Employees
are governed by the statutory Rules emanating from Article 309 of the Constitution. On this score, Mr. Bhattacharya argues that the judgment
rendered by the learned Tribunal is quite justified and it does not warrant any interference by this Court.
15. Mr. Kallol Basu, learned Counsel appearing for the added respondents adopts the submission as advanced by Mr. Bhattacharya.
16. Before we advert to and consider the submissions advanced by the learned Counsels appearing for the parties we feel it necessary to refer to the
relevant portion of the report of the 5th Pay Commission and the relevant provision of the ROPA Rules, 2009.
17.The 5th Pay Commission under Chapter- 10 relating to allowances has, amongst others, reported and recommended as under :-
“10.2. Now we first deal with Dearness Allowance. Due to the unabated pressure of inflation in the economy the real value of salary
fixed periodically by Pay Commission gets continuously eroded with the passage of time. Thus arises the need for payment of Dearness
Allowance so as to protect this loss.
10.3 The State Government since 01.04.1979 has been following the same principles followed by the Government of India in the matter of
calculation of the quantum of each instalment of Dearness Allowance. But almost invariably there is a time lag in actual payment and when
the same is paid, the same does not include any arrears. Right now only one such instalment has remained due which the Government of
India sanctioned on 01.07.2008. The last instalment which the State Government has sanctioned with effect from 01.03.2009 was
sanctioned by the Government of India with effect from 01.01.2008.
10.4. A major grievance of most of the associations of employees has been non-payment of the D.A instalments in time (as per of
Government of India’s announced policy, this is payable twice a year viz., w.e.f. 1st January and 1st July each year). They are also
aggrieved because of non-payment of arrears.
10.6. It is evident from the above that the State Government’s sanction of instalments does not follow any definite pattern. It is also clear
that there are delays in payment of various instalments of D.A and there cannot be any differences of opinion regarding the need to avoid
the delays. We are of the opinion that with some extra effort the State Government should be in a position to clear the backlog of the lone
instalment which was sanctioned by the Government of India w.e.f July 1, 2008, and then fall in line with the Central Government pattern of
sanctioning two instalments of D.A each year. We recommend this course of action. If it is done, it will mitigate a long standing grievance of
almost all employees within our terms.â€
18. The aforesaid recommendation of the 5th Pay Commission has been accepted by the Government by promulgating the ROPA Rules, 2009. As per
Rule 3 (c) “existing emoluments†mean aggregate of (I) existing basic pay, (II) Dearness Pay appropriate to the basic pay and (III) Dearness
Allowance appropriate to the basic pay plus dearness pay at index average 536(1982=100).
19. As quoted above, the Co-ordinate Division Bench in the judgment rendered in WPST No. 45 of 2017 has held that the claim of the employees
serving under the Government of West Bengal for Dearness Allowance is based on legally enforceable right on the all employees serving under the
Government of West Bengal upto such extent of the recommendations of the 5th Pay Commission which has been accepted by the Government of
West Bengal by virtue of the provisions of sub-rule (1) Rule 12 of ROPA Rules, 2009 read with paragraph 10 of the clarificatory memorandum
bearing No. 1691-F dated February 23, 2009 on ROPA Rules, 2009 issued by the government of West Bengal Finance Department, Audit Branch,
and paragraph 3 of memorandum bearing No. 1692-F dated February 23, 2009 in the matter of drawl of Dearness Allowance in revised pay structure
under the ROPA Rules, 2009 issued by the Government of West Bengal. This observation, as stated above, has attained finality. Therefore, we have
no hesitation in our mind to hold that the State Government employees under the ROPA Rules, 2009 has acquired legally enforceable right to get
Dearness Allowance at the rate to be calculated on the basis of All India Consumer Price Index as embedded in Rule 3 (c) of the ROPA Rules, 2009.
20. In view of the decision of a Co-ordinate Division Bench in MAT 501 of 2020 with MAT 502 of 2020 (West Bengal State Electricity Transmission
Company Limited and Others -Vs- West Bengal State Electricity Board Engineers Association and Others) the Employees under West Bengal State
Electricity Transmission Company Limited are entitled to Dearness Allowances at the rate of Central Government.
21. The learned Tribunal in the impugned judgment has struck down the relevant office orders/memorandums under which D.A was paid to the State
Government Employees working at Banga Bhawan in New Delhi and at Youth Hostel in Chennai at the rate payable to the employees of the Central
Government holding the orders/memorandums discriminatory offending the doctrine of equality under Article 14 of the Constitution. Bearing in mind
the principle enunciated by the Hon’ble Apex Court in the decision in the case of D.S. Nakara â€"Vs- Union of India reported in AIR 1983 SC
130 we hold that the classification of the State Government Employees working at West Bengal and State Government Employees working at Delhi
and Chennai governed by the same statutory Rules is discriminatory sans intelligible differntia and offends the golden doctrine of equality under Article
14 of the Constitution.
22. Since the claim of the State Government Employees of Dearness Allowance at the rate to be calculated on the basis of All India Consumer Price
Index has fructified as a legally enforceable statutory right the decisions reported in AIR 1960 SC 1286 and (1985) 3 SCC 177 (supra) cited by
learned Advocate General pertaining to payment of Dearness Allowance to workmen whose conditions of services are contractual in nature under
private individuals/organisations are not applicable to the facts of the case on hand. Similarly, in view of the factual and legal scenario as above the
decision in the case of Tamil Nadu Electricity Board represented by its Chairman â€"Vs- Tneb - Thozhilalar Aykkiya Sangam by its General
Secretary reported in (2019) 15 SCC 235 is also not applicable.
23. As the pleadings indicate, it stands undisputed that due to erosion of value of the salary of Government Employees and non-payment of Dearness
Allowance since long to neutralize the erosion, sustaining livelihood of Government Employees has been affected to a great extent as revealed in the
report of the 5th Pay Commission. As held above, to get Dearness Allowances at the rate to be calculated in terms of All India Consumer Price Index
average 536 (1982=100) is now the legally enforceable right of the State Government Employees. What we feel, apart from acquiring the enforceable
legal right to get Dearness Allowance using the methodology of All India Consumer Price Index, such right of the employees to sustain their livelihood
with human dignity has been fructified or elevated as fundamental right as enshrined in Article 21 of the Constitution. Such right available to
Government Employees who are the main workforce behind the functioning of a Government in right direction cannot be denied by the State. As
observed by the Pay Commission, we are of the same view that to pay respect to the statutory rights of the Government Employees to get D.A
Allowances at the rate as above, the Government must generate all its resources. We feel that denial or deprivation of the legitimate claim of
Dearness Allowance of the employees to sustain their livelihood in a dignified manner may have demoralizing effect upon them which may in turn
adversely affect the smooth functioning of the Government. In such backdrop, the stand taken by the State that due to financial inability it is not in a
position to pay Dearness Allowance to its Employees at the rate to be calculated using the methodology of uniform All India Consumer Price Index
average 536 (1982=100) is not acceptable. While the claim of the employees to Dearness Allowance is backed by statutory and fundamental rights
and the Court finds that the State turns deaf ears to such rights, this Court in exercise of its extraordinary judicial power may direct the State to
implement such rights of the employees.
24. In view of the factual and legal scenario as discussed above, we find that the learned Tribunal by the judgment impugned adjudicated the two
issues formulated by the Division Bench in justified manner. There is no infirmity in the judgment which warrants any interference by this Court.
25.Therefore, the question as raised is answered in the affirmative.
26. Accordingly, the writ petition filed by the State of West Bengal is dismissed on contest. No order as to costs.
27.The petitioners are directed to release the Dearness Allowance and Arrear Dearness Allowance to its employees at the rate to be calculated on
the basis of All India Consumer Price Index average 536(1982=100) commensurate with their pay as per the ROPA Rules, 2009 as directed by the
Tribunal within three months from date.
28. Urgent certified copies of this judgment, if applied for, be given to the parties upon compliance with all requisite formalities.
Harish Tandon, J
1. I had an opportunity to peruse the judgment authored by my brother and I concur with the ultimate decisions arrived at but I thought that I should
pen my perception on the issues involved in the instant writ petition concerning the Dearness Allowance attributable to the Government employees
within the State.
2. The concept of Dearness Allowance and its horizon is required to be recapitulated which in my opinion, is a unique feature to combat the disparity
in the living conditions and mitigating the circumstances faced by the Government employees due to cost inflation. The different countries in the world
have tackled the inflation by revision of wages instead of granting the Dearness Allowance. The Dearness Allowance in our country is a relic of 1st
World War to tackle the rise of costs impacted upon the living standards by not using the same terminology but in the form of an ad-hoc payment not
linked with the inflation of the cost of living. During this 2nd World War, the Dearness Allowance (for short, “DAâ€) was introduced in the form of
a grain compensation allowances to recompense the employee of the hardships suffered for the rise in the price of the foodgrains and after the
independence, the then Central Government constituted the 1st Pay Commission in 1947 to examine the base structure and ascertain the actual
hardship which the Central Government employees suffered because of the steep rise in the cost of living, commonly known as the inflation. The
Committee was also set up on fair wages to evaluate the situation and recommend the suggestive measures which was constituted in the year 1949.
In the same line the 2nd Pay Commission was constituted in the year 1959 and, thereafter, a one man independent committee was constituted to
enquire the question of Dearness Allowance that may be payable to the Government employees and the report was submitted by such one man
committee in the month of July, 1966; the same was followed by an another commission i.e., the Dearness Allowance Commission to examine the
principles governing the grant of DA to the Central Government employees in future and also make recommendations pertaining to the modalities and
the acceptable structure or the formula to calculate the DA in future. Since thereafter, the aforesaid modalities have been adopted by constituting Pay
Commission from time to time and the reports suggesting the modalities on well-structured parameter was being accepted either in entirety or with
certain modifications. Ironically and historically, the observations of the various commissions and the committees the DA was made applicable to the
employees who are at the subsistence level or just above it in order to enable them to sustain the cost of living. Initially, the commission and
committees were taking into various factors but concentrating on the rise in the essential commodities which by passage of time and the progression in
the society the concept of DA changes to engulf various factors imbibing wide range of the commodities to make the life meaningful and/or maintain
the living standard as far as practicable depending upon the compelling limitations of general interests. What was the luxury at one point of time
prevalent in the Indian society have become a necessity in future and what was the necessity has become a basic need in the changing society and,
therefore, the concept of the DA has become more robust and all the Governments are obligated to compensate the loss in the cost of living and
ensure the quality life not to be luxurious or extravagant but on mere sustenance. Initially, the DA was intended to be temporary arrangements or a
transitional protection but because of the stark reality of the situation and the continuous rising of inflation impacting on the potential and efficacies of
the employees in meeting various vicissitudes of the life and, therefore, cannot be perceived to be static.
3. In federal system, the Union of State and its independence as envisioned in the Constitution, the State Government from time to time, in tune with
the Central Government, constituted the Pay Commission to evaluate the inflation in the cost of living to the State Government employees by adopting
a different formula which sometimes raises the disparity. The 6th Central Pay Commission recommended the Dearness Allowances to be calculated
at the index average 536 (1982=100) since the State Governments were setting up their own Pay Commission and the State of West Bengal
constituted the 5th State Pay Commission to ascertain the pay structure, scale of pay, the revised scale of pay and various allowances including the
Dearness Allowances which may be extended to its employees. The report of the 5th State Pay Commission would reveal that the State Government
since 1st April, 1979 has been following the principles followed by the Government of India in the matter of the calculation of the quantum of each
instalment of the Dearness Allowances due to the inhibited pressure of inflation in the economy and the real value of salary fixed periodically by the
pay commissions which gets continuously eroded by passage of time. The Commission thought that it is a high time where the payment of Dearness
Allowances is to be extended and paid to the Government employees to protect the loss. The said commission further found that there has been a
disparity in the time lag in the actual payment of the Dearness Allowances as sometimes the arrears are not included or not paid in uniform manner
and recommended the State Government to clear all the backlogs of the lone instalment in tune with the sanctioned by the Government of India with
effect from July 1, 2008 and to fall in line with the Central Government pattern of sanctioning two instalments of DA each year.
4. On the basis of the said recommendation, the State Government promulgated West Bengal Services (Revision of Pay & Allowance) Rules, 2009
under proviso to Article 309 of the Constitution of India and, therefore, brings the same in reality in the form of the statutory document. The said Rule
would evince that it was made effective from 1stDay of January, 2006 expanding its horizon to all persons appointed to Civil Services and post under
the rule making control of the State Government except certain categories of services indicated in Rule 2 thereof. The said Rule being somewhat
exhaustive encompassing the change in the grade pay, revised pay structure, basic pay in revised pay structure and other allied benefits, apart from
the allowances including the DA. Rule 3 (C) of the said rules defining the existing emoluments includes the DA appropriate to the basic pay plus the
dearness pay at index average 536 (1982=100). While dealing with the fixation of initial pay and revised pay structure under Rule 7, the proviso to
Clause (b) thereof gives manifest intention as to the index average of 536 (1982=100). However, Rule 12 which starts with the non-obstante clause
postulates that the arrears of the DA between the period from 1st January, 2006 to 31st March, 2008 shall not be paid to a Government employee but
the Government employees shall be entitled to the arrears on and from 1st April, 2008 to 31st March, 2009 in three consecutive yearly instalments in
cash for the year 2009-10. The aforesaid rule was published in the Calcutta Gazette: Extraordinary on February 23, 2009. Simultaneously, the
memorandum no. 1691-F was issued by the Finance Department, Government of West Bengal through its principal secretary as clarificatory
memorandum to the said rule concerning the allied matters dealt with by the 5th Pay Commission. Paragraph 2 thereof exposes the intention of the
Government to accept the recommendation of the said Commission concerning the running pay bands and the grade pay leading to its scale of pay
without any modifications; in other words, the same was accepted without any modifications and in toto. Paragraph 10 thereof which is of a seminal
importance in the instant writ petition relates to a DA and exposes the manifest intention of the Government in this regard. Under the said paragraph,
the DA was admissible to all Government employees which they are entitled from time to time, since 1st January, 2006 to be relatable to the pay in the
revised pay structure and on the basis of another Government order issued by the Finance Department vide memo no. 1692-F dated 23rdFebruary,
2009. Under the memo no. 1692-F dated 23rd February, 2009 the Government decided to pay the DA with effect from 1st April, 2008 at the rate
indicated therein. However, the clarification was also given in Paragraph 5 providing the meaning of the term “basic pay†for the purpose of the
DA to mean the pay drawn in the revised pay band including the pay band and non-practicing allowances (NPA), were admissible but shall not include
any other type of pay. This anomaly raises a concern with the several State Government Employees’ Organisations and the representations were
made to the State Government highlighting the disparity not only on the rate of the dearness allowances but its timely payments.
5. Ultimately, the tribunal application under Section 19 of the Administrative Tribunal Act, 1985 being OA no. 1154 of 2016 was filed by the
Respondent no. 1 for the following reliefs:
(a) A direction upon the respondents authorities to forthwith release the 50% dearness allowances which is due upto January, 2006
immediately within a period of 1 (one) month from the date of receiving of the order;
(b) A direction upon the respondent authorities to immediately comply with the report and the recommendations of the 5th Pay Commission
Report positively and without fail within a period of 1 (one)month from the communication of the order;
(c) A direction upon the respondent authorities to release the 50% of dearness allowances as the State Government without releasing the 50%
dearness allowances for mere eye-wash set up a 6th Pay Commission who recommended for 10% interim relief upon the basic pay. But no
whisper about due 50% dearness allowances and unless the court intervenes into it there may be every possibility of forfeiture of that 50%
due dearness allowances which is the penultimate goal and gain of the state Government and the applicants will suffer irreparable loss and
injury;
(d) The applicants pray for relief order directing the respondent authorities to grant 50% of the dearness allowances as that of the Central
Government with arrear up to January, 2016 within a period of two weeks from the date of order;
(e) Costs pertaining to this application and incidental thereto;
(f) Such other further order or orders as Your Lordships may deem fit and proper.â€
6. The said tribunal application was dismissed upon returning the findings that the payment of dearness allowances falls within the absolute prerogative
of the discretionary domain of the State Government and, therefore, no right has accrued into the employee to claim DA. It was further observed that
despite the partial acceptance of the recommendation of the 5th Pay Commission, it does not confer any right on the State employees to bring an
action for enforcement thereof. Lastly it was observed that the DA paid to the employees of the State Government posted at Banga Bhavan, New
Delhi and Youth Hostel at Chennai including the employees of the West Bengal State Electricity Development Corporation is not the discriminatory
one. It is pertinent to record that the plea was also taken by the Respondent no. 1 in the said tribunal application that the moment the DA is paid to a
Government employee at par with the rate of the DA admissible to the Central Government employees, to the State Government Employees posted at
Banga Bhavan, New Delhi and Youth Hostel at Chennai and the West Bengal State Electricity Development Corporation, the same should be also
extended to these employees of the State Government posted within the State of West Bengal.
7. The said order dated Feb 16, 2017 was assailed before the Division Bench in WPST 45 of 2017 wherein the three points were formulated. Firstly,
whether the claim of the State Government employees for Dearness Allowances is a legally enforceable right in terms of ROPA Rules, 2009 read
with the other Government orders issued correspondingly; secondly, whether the claim of the employee to get the Dearness Allowance at the same
rate that of the employees of the Central Government; thirdly, whether the rate of dearness allowance equivalent to the rate of Central Government
employee paid to the State Government employees posted at Banga Bhavan, New Delhi and Youth Hostel at Chennai is discriminatory.
8. The Division Bench answered the first point in favour of the respondent no. 1. In other words, the Division Bench held that the claim of the
employee serving under the State of West Bengal for Dearness Allowance is based on a legally enforceable right to the extent of the recommendation
of the 5th Pay Commission accepted by the Government of West Bengal by promulgating the ROPA Rules, 2009 and the clarificatory memorandum
issued simultaneously. However, the other two questions were not answered and the matter was remitted to the Tribunal to decide the same. The
State Government filed an application for review against the said order which was ultimately dismissed.
9. Thus, the point as to the legally enforceable right having created upon the State Government employees over the claim of DA attained finality and in
absence of any further challenge to the higher forum, such point cannot be reagitated and/or reopened in the instant proceeding.
10. However, the Tribunal on limited remand answered the aforesaid two points in the following:
“38.The function of the pleadings is only to state the material facts and it is for the Court or Tribunal to determine the legal result of those
facts and to mould the relief in accordance with that result, as decided by the Federal Court in “Messers Moolji jaitha and Co. v.
Khandesh Spinning and Wearing Mills Co. Ltd.†Reported in AIR 1950 FC 83: 1950 SCC online FC3. Accordingly, we would like to give
the following directions on the basis of the findings made by us. The respondent No.1, Chief Secretary to the Government of West Bengal is
directed to evolve norms/principles within a period of three months from the date of this order for release of DA on the basic pay of the State
Government employees fixed in terms of ROPA Rules, 2009 by taking into consideration inflation on the basis of AICPI number
(1982=100), so that DA can be paid to the State Government employees at least twice in a year till the date of giving effect to the
recommendation of 6th Pay Commission set up by the Government of West Bengal for its employees. The respondent No. 1 is directed to
implement the norms/principles evolved as per direction of the Tribunal within a period of six months from the date of the order. The
respondent no.1 is further direct6ed to make payment of arrears of DA on the basic pay to the State Government employees by taking into
account level of inflation on the basis of AICPI number (1982=100) by following the norms/principles evolved as per direction of the
Tribunal within a period of one year from the date of this order or before giving effect to the recommendation of 6th Pay Commission set up
by the Government of West Bengal, whichever is earlier. The respondent No.1 is at liberty to decide the mode and manner of payment of
arrears of DA to the State Government employees within the period of time fixed by us. The respondent No.1 is also directed not to give any
effect to the office orders/memorandums issued for payment of DA to the State Government employees posted in New Delhi and Chennai at
a rate payable to the employees of the Central Government but the respondent No.1 will not make any recovery for excess payment of salary
to those State Government employees. The respondent No.1 is at liberty to give incentive to the State Government employees working in New
Delhi and Chennai by payment of special allowance or any other allowances as the State Government may deem fit and proper. With the
above directions, the original application stands disposed of.â€
11.To summarise the findings made by the Tribunal in the impugned judgment, it is discerned that the direction was passed upon the Chief Secretary to
the Government of West Bengal to evolve norms/principles within a specified time for release of DA on the basic pay of the State Government
employees fixed under ROPA Rules, 2009 and such DA shall be paid at least twice in a year till the acceptance and/or giving effect to the
recommendation of the 6th Pay Commission set up by the Government of West Bengal. The Said Chief Secretary was further directed to implement
the norms/principles in terms of the order of the Tribunal within Six months from the date of the said order and to make the payments of the arrears
DA within one year from the date of order or before giving effect to the recommendation of the 6th Pay Commission set up by the State Government
and directed to revise the DA of the employees posted outside the West Bengal in commensurate with the rate of the DA payable to the employees
posted within the State of West Bengal and in the event any excess payment is made, the same should not be realised/recovered from the said
employees. However, the liberty was also granted to the Chief Secretary to take a decision upon extending the incentives to such employees by way
of special allowances or any other allowances as the Government may deem fit and proper.
12. Such being the factual matrix discerned from the record, the learned Advocate General submits that the concept of ascertaining the rate of the
DA being variable and depends upon the various factors including the consumer price index at the relevant place of his posting cannot be brought
within the straight jacket formula. In other words, it is submitted that the DA depends upon the place of posting or where the employee is posted in a
particular place the inflation as to the cost of living at such place and therefore, the uniform standard of ascertaining the cost of inflation on an all India
basis may result into a chaos and relied upon a judgment of the Supreme Court in the case of Workmen Employed By M/s Indian Oxygen Ltd. Vs.
M/s. Indian Oxygen Ltd., reported in (1985) 3SCC 177. According to Mr. Advocate General, the DA is linked to the cost of living index of a particular
centre or place having a local flavour and therefore, in a major city the same would be different than in any other remote places. According to Mr.
Advocate General since the DA is linked to the cost of living index available at the centre and it is not imperative on the part of the State Government
to adopt the rate of the Central Government determined on all India basis. Mr. Advocate General further relies upon a judgment of the Supreme Court
in case of Indian General Navigation and Railway Co., Ltd. Calcutta and Anr. Vs. Workmen and Anr., Reported in AIR 1960 SC 1286 in support of
his contention that the principle behind the ascertainment of the DA is linked with the cost of living index at the place of posting or where their families
are living and/or residing and therefore, the rate of DA ascertained by the Central Government may not be the said safe factor. Mr. Advocate
General is very much vocal in his submission that the DA cannot be claimed as a matter of right as it largely depends upon the ability and the financial
position of the State and for such reason every State follows their own rate of DA payable to its employees and may in some cases adopt the rate of
the DA of the Central Government but there is no obligation on the part of the State Government to accept the said rate and placed reliance upon a
judgment of the Supreme Court in Tamil Nadu Electricity Board vs. TNEB- Thozhilalar Aykkiya Sangam, reported in (2019) 15 SCC 235. Mr.
Advocate General further submits that since the rate of DA is variable in nature depending largely upon the place of posting, there is no incongruity in
the decision of the State Government in giving the DA at the rate equivalent to the DA of the Central Government employees to its employees posted
at New Delhi, Chennai and other organisations. As per the learned Advocate General, such policy decision of the State Government is non-
discriminatory and based upon rationality, reasonability and there is an intelligible differentia amongst the same class.
13. Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate appearing for the Respondent no. 1 submits that the moment the Government accept
the recommendation of the 5th Pay Commission by promulgating the Rule in exercise of the power conferred under Article 309 of the Constitution of
India, it cannot retract therefrom and deny the legitimate claim emanates from the said statutory rules. It is further submitted that the earlier Division
Bench has held that the said respondent has a legally enforceable right to claim the DA under ROPA Rules, 2009 and therefore, the State
Government cannot take a contrary stand thereto. According to Mr. Bhattacharya, if the modalities and the basic factors emanates from the said
ROPA Rules, 2009 is evident and patent and require to be adhered to, the contention of the learned Advocate General that the dearness allowance is
variable and largely dependent upon the place of the posting is untenable. It is further submitted that mere a plea relating to inability or incapability to
pay dearness allowance determined under the structured formula is an unacceptable defence and in fact, the same argument was advanced in case of
West Bengal State Electricity Transmission Company Ltd. &Ors. vs. West Bengal State Electricity Board Engineers’ Association &Ors. (MAT
109 of 2020) decided on 11.3.2020, but does not found favour. The said judgment was assailed before the Supreme Court in the Special Leave to
Appeal (C) No. 2947 of 2022 which was dismissed on 4th March, 2022. Thus, it is contended that the moment the Government accepted the
recommendation of the pay commission by framing the Rules under Article 309 of the Constitution of India, it cannot take a rebound and deny the
payment of the DA under any pretext including the financial crunch.
14.Mr. Kallol Basu, learned Advocate appearing for the aided respondents adopts and reiterates the stand of Mr. Bhattacharya by submitting that the
State Government cannot take a plea of fixing rate of DA by taking the cost price index at a particular place in view of the definition of the existing
emoluments under ROPA Rules, 2009. He, thus, submits that there is no illegality or infirmity in the impugned order and therefore, the writ petition
filed by the State needs to be dismissed.
15.The facts emerged from the pleadings of the parties and the arguments so advanced before us have squeezed the zone of consideration in the
limited sphere. Initially, the plea was taken by the State that DA is not legally enforceable right and therefore, the State Government employees are
not entitled to any relief consequent thereupon and the writ petition was dismissed on February 16, 2017 by the Tribunal but the Division Bench while
considering the writ petition filed against the said order of the Tribunal held in unequivocal term that the same is the legally enforceable right but
declined to interfere with other two points, namely, (i) whether the claim of the employees serving under the Government of West Bengal for dearness
allowance at a rate equivalent to the employees of the Central Government and (ii) whether the discrimination in the matter of payment of dearness
allowance to the employees of the State Government with their counterparts serving at Banga Bhavan in New Delhi and Youth Hostel in Chennai, are
require to be decided upon disclosure of the further materials. An application for review was filed against the order of the Division Bench passed in
WPST No. 45 of 2017 which was later on dismissed. There was no further challenge to the said order of the Division Bench and therefore, it can be
reasonably inferred that the said order attained finality. As a logical corollary, the main thrust on a plea of legally enforceable right relating to the claim
of DA has been set at rest and it cannot be reopened in the instant proceeding. After the remand on the aforesaid two points, the Tribunal has
answered the same and rejected the contention that the statutory rules or the administrative directions mandates the State Government employees to
get DA at the rate payable to its employees by the Central Government. However, the Tribunal held that the claim of DA being legally enforceable
right, the State Government employees are entitled to get DA on the basic pay at the rate to be calculated on the basis of all-India Consumer Price
Index (AICPI) number published from time to time taking the base year (1982=100) and therefore, it is the bounden duty of the State Government to
evolve norms/principles on payment of DA to its employees by calculating the same on the basis of AICPI on the basic pay fixed in terms of the
ROPA Rules, 2009 till the date of giving the effect to the recommendation of 6th Pay Commission set up by the State of West Bengal. It was further
held that the State Government is bound to pay the arrears of DA upon fixation of the rate in terms of the aforesaid directions either in cash or giving
direction for depositing the same in General Provident Fund (for short, “GPFâ€) with suitable restrictions in withdrawal of the same within the
specified time. So far as the point of discrimination is concerned, the Tribunal held that there cannot be the classification within the class and all the
State Government employees constitute a homogeneous class and therefore, the payment of DA at different rate (in this case at the rate declared by
the Central Government) is discriminatory and is violative of Article 14 of the Constitution of India. Such being the position as stood as on this date,
there is no hesitation to hold that it is not obligatory or imperative on the part of the State Government to pay the DA to its employee at the rate of DA
paid to the Central Government employee. The question is still begging an answer what would be the modalities and/or norms to be adopted by the
State Government in ascertaining the rate of DA to its employee?
16.According to the learned Advocate General, the adjudication and/or ascertainment of DA cannot be brought within the straight-jacket formula as it
depends upon the place of posting and therefore, it is variable in nature with an avowed object to neutralise the high cost of living because of the
inflation at a place where he is posted or his family is residing and therefore, it is within the exclusive domain of the State Government to declare the
DA at the rate prevalent at the respective locality and not on the standard formula. The judgment of India General Navigation and Railway Co. Ltd.,
Calcutta & Anr. (supra) appears to have been misunderstood in this regard. In the said report, the employer was a steamer company having its head
office at Calcutta and the dispute arose with its worker primarily on two grounds, namely, (i) the dearness allowance for the steamer and flat clerks
and (ii) the working hours for ghat employees on Saturdays. Initially, Bengal Chambers of Commerce was entrusted the task of ascertaining the rate
of DA to the staff posted at the head office and at the Calcutta ghats and recommended that the steamer clerks and flat should be paid the same rate
of DA. The company took a plea that there is a fallacy in the said recommendation to grant the rate of DA to those clerks at such rate in a uniformed
manner but must be allowed at the rate prevalent at the locality whether the workman is posted. The Apex Court held that the concept of DA largely
depends upon the place of posting of the employee but did not accept such contention on the special fact that those clerks were entrusted to work on
flats and steamers while plying on the river cannot be said to have a definite place of posting and therefore, held that the expression “place of
posting†should mean that the employee should get DA where their families are residing which would be considered to be a place of posting of such
employees for all practical purposes in these words:
“5.So far as the principle is concerned there is no doubt that dearness allowance depends upon the place of posting of an employee. The
difficulty, however, of applying this principle in the case of these clerks is that they have no definite place of posting; they are flat and
steamer clerks and their main duty is to work on flats and steamers while they are plying on the river. In such a case the principle that
dearness allowance should be governed by the place of posting can only mean that the employees should get dearness allowance where their
families (i.e. wife and children) are residing, for that would be the place of posting of such employees for all practical purposes. The
Tribunal’s view therefore that these clerks should be paid this rate of dearness allowance would be justified on the presumption made by
it that the families of these clerks must necessarily be living in Calcutta when they were on duty on a flat or steamer. There is, however, no
proof of this on the record and it cannot necessarily be assumed that every such clerk must be keeping his family in Greater Calcutta. As we
have pointed out above, this rate of dearness allowance is not meant to apply to those who reside outside Greater Calcutta. Though therefore
the Tribunal is right in awarding this rate of dearness allowance to these clerks, it went wrong in assuming that every one of these clerks
was residing in Greater Calcutta.â€
17.In Workmen Employed By M/s. Indian Oxygen Ltd. (supra) the question which fell for consideration whether the variable DA payable by the
employer to its workmen should be revised by linking with the Consumer Price Index for industrial workers at Kanpur as computed by Labour Bureau,
Simla and if the answer is affirmative than at what rate. In the said case, the company has a Pan India Establishments and there appears to be two
rival unions at its industrial undertaking at Kanpur. The company subsequently intended to uniformly grant the DA to its employees posted at all its
industrial establishments throughout the country which raises a dissent amongst the employees of the industrial undertaking at Kanpur. It was the
stand of the dissenting union that the workman employed in the company and the major cities are getting a higher DA in comparison to Kanpur Unit
and therefore, the working out of the rate of DA taking into account the consumer price index for Delhi prepared by the Labour Bureau, Simla cannot
be uniformly applied while revising the rate of the DA for the workman employed in at Kanpur Unit. The Apex Court held that the DA is directly
relatable to the erosion of real wages for the constant upward rise in the prices of the basic necessities and is somewhat depended upon the
inflationary inputs which resulted in short fall in the purchasing power of the rupee. It is further held that the DA linked with the price rise with an
avowed object recompense loss in real wages on account of the steep price rise. It was, thus, held that the company has been misled to adopt the
equitable principle of introducing uniform rate of the DA linked with the all-India average consumer price index prepared by the Labour Bureau,
Simla.
18.The aforesaid two judgments relate to an industrial dispute and the nature of the DA which is an integral part of the wages awarded to its
workman at the several units at different places. There was no statutory rules governing the field of the DA and was largely depended upon the policy
decision of the company. The company which has a Pan India Establishments intended to grant the DA on uniform rate taking into account the
inflation at a particular place which has not been accepted to be the safe mode. Even the Apex Court has held that all the workmen of the company
are entitled to an uniform rate of wages depending upon the nature of the duties and responsibilities entrusted upon them but so far as the rate of DA
is concerned it varies from place to place and it would not be safe to ascertain the rate of DA based upon cost price index at a particular place as it is
variable in nature. The aforesaid judgments in our opinion cannot come in aid to the State Government as they are guided, controlled, regulated and
bound by the statutory provisions. It is one thing to say that the policy decision is within the realm of the State and the courts should seldom interfere
therewith but it is completely different when the statutory rules provides and regulates the functioning of the State Government and therefore, any
departure therefrom has to be within the strict boundaries thereof. Previously, the Bengal Chambers of Commerce was entrusted to ascertain the rate
of inflation and recommended the said rate of DA to the workmen of the industrial undertaking within the region but the same has been done away
with and the onerous duties have been entrusted upon the Labour Bureau, Simla. The concept of DA to neutralise the real wages of the workmen at a
particular industrial establishments may be variable but the same analogy in our opinion may not be adopted in relation to Government employees be it
of the State or the Central. In recent past, the Central Government has granted the DA to all its employees uniformly irrespective of their place of
posting. The concept of variability in the DA has radically changed and the uniformity appears to be the hallmark thereof. In fact, the State
Government on accepting the recommendation of the 5th Pay Commission framed ROPA Rules, 2009 under Article 309 of the Constitution of India
and expressly excluded the categories of the persons from the purview under Rule 2 thereof. The said rule manifestly exposes the lucid and explicit
intention of the Government in a doctrine of the recommendation of the 5th Pay Commission and while defining “existing emoluments†under
Clause 3(C) thereof. The method of ascertaining the DA has been clearly spelt out to be based upon at the index average 536 (1982=100). It is
logically inferred from the aforesaid stand of the State that the rate of DA declared by the Central Government though at the index average 536
(1982=100) cannot be extended to the State Government employee because of the variability in the living cost price within the State but the State
Government cannot deny the applicability of the index average 536 (1982=100) under the said statutory rules. On the same day when the said rule
was published in the official gazette, the Memorandum 1690-F dated 23rd February, 2009 was issued by the Special Secretary, Government of West
Bengal indicating the conscious decision of the Government relating to the release of the DA admissible to the Government employees in the revised
pay structure but the DA between the period from 1st January, 2006 to 31st March, 2008 was decided not to be paid to such employees. Consequent
upon the said Memorandum, the clarification was made vide Memo No. 1691-F dated 23rd February, 2009 wherein the DA which the State
Government employees were entitled from time to time since 1st January, 2006 was to be paid in terms of the said Memo No. 1692-F dated 23rd
February, 2009. The subsequent memorandum clarifying the stand of the Government leaves no ambiguity that it is imperative on the part of the State
to pay the DA to its employees on and from 1st April, 2008 at the rate calculated on the basis of the index average 536 (1982=100). There cannot be
any departure from the provisions of the statutory rules nor the State Governments can act contrary thereto taking shelter under the incapability and/or
incapacity to meet such requirement. In fact, the Tribunal also held that it would not be proper to direct the State Government to pay the DA at the
rate of the Central Government but in view of the discussions made hereinabove, there is no infirmity in the direction passed by the Tribunal for
evolving the norms/principles in fixing the DA on the basis of the AICPI 536 (1982=100). It appears from the materials on record that after accepting
the recommendation of the 5th Pay Commission and upon the promulgation of the ROPA Rules, 2009, the DA was released twice in a year though in
erratic manner. The Central Government on the basis of the 6th Pay Commission have decided to pay the DA twice in a year which was continued to
be accepted by the State Government and implemented for a brief period but later on there has been a disparity. The moment the State Government
has adopted the manner in which the DA is to be ascertained and paid to the employees twice in a year, in absence of any valid reasons or compelling
circumstances, the abrupt disruption cannot be countenanced and therefore, we do not find any fault in the order of the Tribunal in this regard.
19.So far as the second point is concerned the tribunal has found all the State Government employees irrespective of their place of posting are to be
treated uniformly and there cannot be any discrimination in granting the DA at different rates to the State Government employees posted at Delhi or
Chennai. The Division Bench in an earlier round of litigation have held that the claim of DA is a legally enforceable right. The moment it is declared
that the DA is a legal right the payment in uniform rate would avoid any kind of discrimination. As indicated above, there has been a paradigm shift
between the period prior to 2009 and after as the Bengal Chambers of Commerce who was initially entrusted to deal with such situation was done
away with and an uniform base index of 536 (1982=100) was adopted and implemented. Under the ROPA Rules, 2009 the rate of DA to the State
Government employees is determined on the basis of AICPI and applicable to all the State Government employees and therefore, the moment they
constitute a homogeneous class and in absence of any special or compelling factors differentiating them or in absence of any intelligible differentia, the
class differentiation offends Article 14 of the Constitution of India. There cannot be any categorisation of the State Government employees on the
basis of their posting at different locations as it would amount to a classification within the homogeneous class. We are not unmindful of the
proposition of law that the classification within the class can be accepted provided, it is based upon the rationale and there is an intelligible differentia
distinguishing one group of person from other. There must be a rational and reasonable nexus with the avowed object sought to be achieved by such
classification. The moment the AICPI is the base factor to ascertain the DA it imbibed within itself all such eventualities undertaken by the Labour
Bureau, Simla and therefore, the moment the rate of DA is ascertained based upon such factor, the discrimination in payment of different rates of DA
to the employees posted at New Delhi or Chennai and the employees within the State offends Article 14 of the Constitution of India. It is within the
domain of the State Government to provide special or other allowances to such employees because of the vagarious of the posting at the distinct place
from the State but we do not find any justification in differential payment of the DA to such employees.
20. In view of the findings recorded hereinabove. We do not find any infirmity or illegality in the impugned order and therefore, the writ petition
deserves dismissal which is accordingly dismissed.
21. Urgent photostat certified copies of this judgment, if applied for, be made available to the parties subject to compliance with requisite formalities.
